R.M. Devadu vs V. P. Balasubramanian

S. Jagadeesan, J.—By consent of both the counsel the C.R.P. itself is taken up for final disposal. The revision has been filed against the order of arrest. The petitioner is the judgment debtor. The main grievance of the petitioner is that he has been declared as a debtor under the Tamil Nadu Debt Relief Act (XIII of 1980) and hence he is not liable to pay the decree amount. The order of arrest has been passed without considering the claim put forth by the petitioner. The counsel for the respondent contended that the suit is for recovery of money and as such Sections 4,5 and 6 of the Tamil Nadu Debt Relief Act (XIII of 1980) has no application for the money claim, and hence the order of Tahsildar relied upon by the petitioner has no relevance. Further, it is contended by the respondent that the petitioner had been examined as R.W. 1 and only after the consideration of the evidence, the court below has ordered the arrest.

A perusal of the order of the court below reveals that the lower Court has made an endorsement on 30.10.1996 as follows:-

"R.W. 1 examined in lull. Ex. 1 marked, Respondent side, evidence closed. No oral evidence on the petitioners side. For arguments adjourned to 02.11.1995".

The Final order has been passed on 13.11.1996 as follows :-

When the decree holders seek the arrest of the Judgment debt, it is the primary duty of the decree holders to establish the means of the Judgment debtor either by way of affidavit of other means. Hence, it is the duty of the Court to consider whether the decree holder, had established the means of the Judgment debtor. In order to ascertain this fact it is the duty of the lower Court to traverse the averments made in the affidavit filed by the decree holder in support of the application for the arrest or other materials produced by the decree holder. In this case, only the Judgment debtor had been examined. Even though the order of the Tahsildar issued under the Tamil Nadu Debt Relief Act (XIII of 1980) has no effect on the Civil Court, still when the judgment debtor claims the benefit under Act XIII of 1980, it is duty of the Executing Court to give a finding. In fact, a Division Bench of this Court in J. Ramu Chettiar Vs. The Special Tahsildar (Debt Relief) and Others, has specifically held that the judgment debtor cannot approach the Tahsildar for discharge under the said Act for money claims. The Tahsildar is empowered to issue a certificate only in case of a mortgage or a pledge Hence, the certificate issued by the Tahsildar is of no use.

The final order of the lower court dated 13.11.1995 does not reveal any discussion on the part of the lower court either in the evidence adduced by the respondents or with regard to the plea raised in the evidence. In the absence of consideration of the vital factors including the evidence of the respondents, I am of the view that the order of the court below cannot be sustained. Hence, the order of the lower court is hereby set aside and accordingly the Revision in allowed. The E.P. 216 of 1993 is remitted back to the lower court for fresh disposal, in accordance with law. In view of the order passed in the C.R.P. there will be no separate orders in the C.M.P.